ORIGINAL PROCEEDING WRIT OF MANDAMUS 269th District Court
Harris County, Texas Trial Court Cause No. 2017-34739
consists of Justices Wise, Zimmerer, and Spain.
February 26, 2019, relator TAH Investments, LLC
("TAH") filed a petition for writ of mandamus in
this court. See Tex. Gov't Code Ann. §
22.221; see also Tex. R. App. P. 52. The real
party-in-interest and plaintiff below is M.M.
("Plaintiff"). In the petition, TAH asks this court
to compel the Honorable Cory Sepolio, presiding judge of the
269th District Court of Harris County, to vacate his order
denying TAH's motion for reconsideration of a December
21, 2018 order striking TAH's affirmative defense that
Plaintiff cannot recover because of the exclusive remedy
provision of the workers' compensation laws and the
borrowed-servant doctrine ("TAH's workers'
conclude that relator is entitled to the requested relief.
and Procedural Background
underlying suit arises out of Plaintiff s allegation that she
was sexually assaulted by an intruder while working the night
shift at a hotel owned by TAH. TAH alleges that Plaintiff was
hired by TAH and Emergent HR, Inc. ("Emergent") and
that Emergent is a staffing company that TAH contracted with
for Plaintiffs services.
filed the underlying suit against TAH, alleging, among other
things, that TAH was negligent for failing to provide
adequate security measures at the hotel. Plaintiff, pursuant
to Texas Rule of Civil Procedure 194, requested TAH to
disclose the information and material described in Rule
194.2, which includes any insurance agreements. See
Tex. R. Civ. P. 194.2. Plaintiff also sent TAH requests for
production that sought, among other things, disclosure of any
applicable workers' compensation policies:
• Request for Production No. 2 sought: "True and
correct copies of any and all worker's compensation
policies that [TAH] had in force and effect as of October 29,
On October 13, 2017, Defendant responded: "None."
• Request for Production No. 14 sought: "A true and
correct copy of the Employer's First Report of Injury
filed with the Texas Workers Compensation Commission."
On October 13, 2017, Defendant initially responded:
to the affidavit of TAH's counsel, he believed these
responses were correct when made, but after further legal and
factual investigation, he discovered in early August 2018
that sexual assault is compensable under the Texas
Workers' Compensation Act and that Emergent's
affiliate, USA Staffing, LLC, carried a workers'
August 14, 2018, TAH amended its four-page answer to plead
the exclusive-remedy provision of the workers'
compensation laws as an affirmative defense. Also on August
14, 2018, TAH, via e-mail, served Plaintiff with its
Supplemental Response to Plaintiff's Requests for
Disclosure, which stated, "See attached insurance policy
and endorsement." The workers' compensation policy
on which TAH's defense is predicated was attached to the
e-mail and was identified in the e-mail as "Insurance
Policy." Accordingly, TAH disclosed its workers'
compensation defense in its answer before the August 17, 2018
deadline for amending pleadings and produced the workers'
compensation policy before the October 19, 2018 deadline for
the completion of discovery stated in the docket-control
to the affidavit of TAH's counsel, although he knew that
USA Staffing, LLC had a workers' compensation policy, he
still did not know whether this policy was sufficient to
invoke the exclusive-remedy provision of the workers'
compensation laws. So, on September 11, 2018, TAH retained a
workers' compensation attorney as an expert to help